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DECREE No

DECREE No. 69/2002/ND-CP OF JULY 12, 2002 ON MANAGEMENT AND HANDLING OF OUTSTANDING DEBTS FOR STATE ENTERPRISES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

At the proposal of the Finance Minister,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Application scope and objects

1. This Decree prescribes the handling of outstanding debts and the debt management mechanism as well as the responsibility to repay debts of State enterprises.

2. This Decree shall apply to:

a) The State enterprises which are operating under the provisions in Article 1 of the State Enterprise Law.

b) The State enterprises which are carrying out procedures for transformation ( put on the list of those to be equitized, assigned, sold, business contracted, leased or transformed into one-member limited liability companies) by decisions of competent State bodies (hereinafter called the transformed enterprises for short).

The State-run commercial banks shall be governed by separate regulations.

Article 2.- Outstanding debts

1. The outstanding debts mentioned in this Decree shall be construed as the receivable debts and payable debts, which have become overdue and cannot be repaid though the enterprises have applied various handling measures such as comparison for certification, urging of repayment.

2. The outstanding debts include:

a) State budget debts.

b) Debts owed to commercial banks.

c) National Reserve debts.

d) Social insurance debts.

e) Debts owed to organizations and individuals outside the enterprises and officials and employees inside the enterprises.

f) Other debts.

Article 3.- Scope of handling of outstanding debts

1. For operating State enterprises: The handling scope shall cover the outstanding debts up to December 31, 2000. The outstanding debts which arise after December 31, 2000 must be repaid or recovered by the enterprises themselves.

2. For State enterprises subject to transformation: The handling scope shall cover the outstanding debts up to the time of transformation. The outstanding debts which arise after the time of transformation shall be repaid or recovered by the enterprises themselves.

Article 4.- Debt-handling requirements and principles

1. Enterprises have the responsibility to compare, certify and classify debts, urge the recovery thereof and actively handle the outstanding debts including the accounts receivable and debts repayable under the provisions of this Decree.

2. The order of priority for mobilization of sources for handling the outstanding debts of State enterprises:

a) State enterprises� sources of receivable bad debt reserve set up through annual deductions.

b) Annual business profits of State enterprises, which are accounted into business expenses or income of the enterprises, depending on each debt.

c) Amounts subtracted from profits or capital of creditors in cases of debt freezing, debt reschedule or debt remission.

d) Amounts subtracted from the value of the State capital portion at enterprises.

e) The sources of expense for reform of State enterprises and the system of commercial banks in the 2001-2003 period under Decision No. 92/QD-TTg of January 29, 2002 of the Prime Minister.

3. For debts which cannot be recovered or cannot be repaid, first of all, the enterprises shall have to find by themselves every handling measure, share difficulties between creditors and debtors to handle them through forms of debt freezing, debt reschedule, debt remission and debt purchase and sale; cases falling beyond their handling capabilities and competence must be reported by the enterprises to competent bodies for measures to support the settlement.

4. The enterprises which are carrying out procedures for transformation shall be entitled to immediately handle the outstanding debt amounts in conformity with the mechanism for transformation of State enterprises.

5. The debt handling measures must be applied synchronously on the basis of reorganizing and raising the efficiency of, the enterprises in order to obtain sources for debt repayment with a view to making healthy and stabilizing for long-term the enterprise finance.

Chapter II

HANDLING OF RECEIVABLE OUTSTANDING DEBTS OF ENTERPRISES

Article 5.- Handling of receivable bad debts

1. Receivable overdue or due debts falling into one of the following cases shall be considered bad debts:

a) Debtors are enterprises or organizations that have completed their dissolution or bankruptcy under the provisions of law.

b) Debtors have ceased their operation and been insolvent.

c) Debtors are individuals who have died or are missing or serving their imprisonment sentence, or are heirs at law, who are incapable of repaying debts under court decisions.

d) Agricultural cooperatives which have been dissolved, agricultural cooperatives which have been transformed and made business registration under the Government�s Decree No. 16/CP of February 12, 1997 but met with financial difficulties and suffered from business losses, being incapable of repaying their debts, and agricultural cooperatives which have profitably conducted business and used debt amounts for investment in infrastructure, but now such infrastructure are damaged due to natural calamities, storms or floods, shall have their debts written off by the State.

e) Debtors have enjoyed debt remission under decisions of competent agencies as provided for by law.

f) The bad debt deficits after individuals and/or collectives have been held responsible for payment of material compensations.

g) The loss deficits accepted by competent bodies due to the sale of receivable debts.

h) The receivable debts for which the debt claim expenses are larger than their values

i) The receivable debts which have become overdue for 3 years or more and cannot be recovered from debtors that still exist and are operating, suffering from continuous losses and meeting with great difficulties though the enterprises have applied different measures.

2. For operating State enterprises, the receivable bad debts prescribed in Clause 1 of this Article shall be handled in the following order:

a) Using the receivable bad debt reserve sources to make up therefor.

b) Accounting them into the business expenses or incomes of enterprises, depending on each specific case.

c) Where they are accounted into business expenses but the enterprises have suffered from losses, being unable to offset the losses for two consecutive years, and the enterprises do not fall into cases of dissolution or bankruptcy, the competent bodies shall consider and decide to decrease the State capital at the enterprises.

d) Where the measures prescribed at Points a, b and c above have been applied but the enterprises still meet with financial difficulties, the Finance Ministry shall coordinate with the concerned agencies in considering and deciding on capital support or reduction of losses of the enterprises from the source of expenses for reform of enterprises under the Prime Minister�s decision. This support shall be provided by the Finance Ministry directly or via intermediary financial organizations having such function.

3. For State enterprises being under transformation, the receivable bad debts, after being handled once under the provisions at Points a and b, Clause 2 of this Article the enterprises suffer from losses or when debts are not yet handled, the enterprises have already suffered from losses, they shall be considered for the decrease of State capital at enterprises before the transformation.

Where the value of the State capital portion at the enterprises is not enough for handling the accumulated losses and bad debts, or after handling with the decrease of the value of State capital portion at enterprises the remaining value is too small, being not enough to implement the policy of selling preferential equities to the laborers in the enterprises as provided for, or failing to ensure the State capital percentage in the joint-stock companies, the Finance Ministry shall decide to transfer a number of receivable debt amounts to organizations with function of buying and selling outstanding debts and assets handled by the State. In this case, the difference between the value of the receivable debt amounts and the amounts actually recovered by the organizations with function of buying and selling outstanding debts and assets shall be offset from the sources of expense for reform of enterprises.

4. For receivable bad debts, which have already been handled but the debtors still exist, the enterprises shall have to continue monitoring them outside the accounting balance sheet and organize the recovery thereof within 5 years. The recovered money amounts shall be accounted into incomes of the enterprises.

For transformed enterprises, after being transformed, the representatives of the owners of the State capital portions at enterprises shall have to continue monitoring them and organize the recovery of receivable bad debts which have already been handled before the transformation but can be recovered; the collected amounts, after subtracting the expenses for debt recovery, shall be remitted into the State enterprise- reorganizing and equitizing support fund or transferring the dossiers and documents to the organizations with function of buying and selling outstanding debts and assets by decisions of competent State bodies for continued monitoring and organization of recovery thereof for the State budget.

Article 6.- Handling of receivable outstanding debts which can be recovered

1. For the receivable outstanding debt amounts which can be recovered, the enterprises must actively urge and apply every measure for the recovery thereof.

2. For the receivable debt amounts, which have become overdue for 2 years or more and can be recovered, the enterprises must set up reserves and account them into the managerial expenses of the enterprises in the year. The level of deduction for setting up the reserves shall depend on the extent of possible losses, but the total amount of reserve for receivable bad debts shall not exceed 20% of the total debit balance of receivable amounts of the enterprises at the time of making the annual financial reports.

Article 7.- Handling of the State budget-related receivable debt amounts of State enterprises

1. Amounts subsidized or supplementarily allocated by the State budget according to regulations but not yet provided by any budget level shall be fully allocated to the enterprises by such budget level.

2. Amounts remitted in excess by enterprises into any budget level must be refunded to the enterprises or subtracted by such budget level from the payable amount of the subsequent period according to law provisions on tax.

3. Debt amounts regarding volume of capital construction investment under works or projects approved according to competence and invested with budget capital sources, already completed and put to use, which have not yet been fully paid, must be paid in time by the budget to the enterprises. Investment in works from any budget level must be fully and timely paid to the enterprises by such budget level.

4. Amounts to be paid by local budgets when the enterprises� assets are mobilized for non-business units or State management bodies in the localities must be paid to the enterprises from the local budgets by the localities.

5. Enterprises� receivable debt amounts due to the construction of public works and infrastructure for localities, the transfer or sale of assets and/or working offices to non-business units and/or State management bodies in localities, which are included in the investment plans already approved, but for which the enterprises have not yet received the money, the authorities deciding the investment in or transfer of assets must arrange budget of that level for payment to the enterprises. Cases falling beyond their competence or the budget�s capability shall be reported to the Prime Minister for decision. For enterprises being transformed, they are entitled to decrease the State budget portion in the total values of the enterprises and to inscribe capital increase for units that receive those construction works and/or infrastructure or the units that use the assets bought from the enterprises.

6. Enterprises� money amounts temporarily seized by State bodies in the process of examination, inspection or investigation of cases must be returned to the enterprises by the agencies that decided the seizure thereof after there are conclusions that the enterprises were not at fault or shall not have to overcome the consequences.

Article 8.- Handling of guaranteed receivable debts

Organizations and individuals that provide guarantee for enterprises to borrow capital or purchase supplies and goods with deferred payment shall have to repay debts for the enterprises if past the payment time limits the guaranteed enterprises still cannot repay their debts. The enterprises for which debts have been repaid must acknowledge their debts and repay their debts to the organizations and/or individuals that have provided them with guarantee as prescribed.

Article 9.- Accounting of bad debt losses

The State enterprises are entitled to handle and account once or gradually their bad debts into their annual production and business results according to the provisions at Point b, Clause 2, Article 5 of this Decree, but for 2 years at most.

Article 10.- Enterprises with large bad debts

The State enterprises, which have too large receivable debts which cannot be recovered and cannot be fully handled by measures prescribed at Clause 2, Article 5 of this Decree, thus being unable to repay their payable due debts, must be dissolved or bankrupted according to the provisions of law.

Where it is necessary to maintain the enterprises and the enterprises have efficient business plans approved by competent authorities, the provincial/municipal People�s Committees or their managing ministries or branches shall propose the Finance Ministry to consider the addition to the charter capital or take measures to provide financial support so that the enterprises can maintain their normal operations. For cases falling beyond its competence or beyond the budget capacity, the Finance Ministry shall report them to the Prime Minister for decision.

Chapter III

HANDLING OF OUTSTANDING PAYABLE DEBTS OF ENTERPRISES

Article 11.- Tax debt amounts and State budget remittance amounts

1. For State enterprises, which have executed investment projects already approved by competent bodies but had, due to the shortage of capital, appropriated tax money and State budget remittance amounts as from December 31, 1999 backward for the execution of the investment projects and have so far been still unable to repay them, if the investment projects have been completed and put to use, the tax and State budget remittance amounts used by the enterprises in those projects shall be added to the investment capital of the enterprises.

2. The State enterprises which are subject to assignment or sale under the Government�s Decree No.103/1999/ND-CP of September 10, 1999 and Decree No.49/2002/ND-CP of April 24, 2002 and have their payable amounts larger than the value of the enterprises� assets or larger than the proceeds from the sale of the enterprises shall be considered for remission of tax debts and amounts remittable to the State budget.

3. Where State enterprises are merged with other State enterprises under decisions of competent bodies, if after the financial or credit support measures are applied the merging enterprises remain unable to repay tax debts and amounts remittable to the State budgets, they shall be entitled to the remission of tax debts and amounts payable to the State budget, which, however, must not exceed the loss amounts of the merged enterprises.

4. The State enterprises, which had suffered from losses in the production and business activities and still owed tax debts and State budget remittance amounts from December 31, 1998 backward due to changes in mechanism and policies, to natural calamities, the lack of capital for renewal of technologies, machinery and equipment and/or due to difficulties in labor rearrangement, if they are not subject to dissolution, bankruptcy or merger and after the application of tax exemption or reduction, financial or credit support and other measures the enterprises still suffer from losses and remain unable to repay the tax debts and State budget remittance amounts, shall be entitled to remission of tax debts and State budget remittance amounts, which, however, must not exceed the loss amounts of the enterprises by the time of debt handling.

5. The enterprises, which are engaged in export and/or import business activities and subject to retrospective collection of taxes and tax fines for export and/or import business activities due to objective causes shall be considered for remission of tax and fine arrears for case by case.

6. The enterprises, which are subject to transformation as decided but still owe tax debts and State budget remittance amounts and after the handling of receivable debts the enterprises remain unable to repay their tax debts and State budget remittance amounts due to losses shall be considered for remission of their debts which, however, must not exceed the loss amounts incurred by the time of issuing transformation decisions.

7. Where the enterprises use budget advances to buy export goods for repayment of foreign debts, for export to earn foreign currencies for setting up of the State reserve fund or buying reserve goods for future circulation, but due to price fluctuation the enterprises fail to buy enough goods as prescribed, have owed budget debts by the time of promulgating this Decree, have made declarations and got the certifications by provincial/municipal debt settlement boards or their managing ministries or branches, they shall be entitled to debt remission.

8. Where the enterprises have owed to the State budget the imported goods money under the Government�s protocol due to their failure to collect the goods sale money or failure to fully remit the collected money into the budget, they shall be handled as follows:

a) Where the enterprises have sold goods with deferred payment to units according to direction and regulations of the State and have so far been unable to collect the money, they shall be considered for debt remission.

b) Where the enterprises import goods under protocols, which are incompatible with the market requirements, thus having to reduce the sale prices to the level lower than the prices agreed upon with the State and having suffered from losses which have not yet been handled, they shall be considered for remission of debts equivalent to the deficit due to sale at prices lower than the prices agreed upon with the State but not exceeding the arising debt amounts not yet handled.

9. For amounts borrowed from the State budget, the enterprises shall have to repay them to the State budget as provided for. If being unable to repay them due to objective causes, the enterprises shall report such to the competent bodies for settling case by case according to the provisions of law.

Article 12.- Debts owed to State-run commercial banks by State enterprises

1. The operating State enterprises which owe debts to State-run commercial banks, have been put into debt repayment plans and certified by provincial/municipal debt settlement boards but have conducted business at a loss shall be classified and handled as follows:

a) Enterprises, which have repeatedly suffered from unredeemable losses, must be dissolved or bankrupted according to the provisions of law.

b) Enterprises, which have suffered from losses, reorganized their production and see development prospects, shall be handled as follows:

- Enterprises with debts owed to State-run commercial banks, which have been frozen, shall be entitled to remission of lending interest debts and considered for prolongation of debt-freezing duration.

- Enterprises with debts owed to State-run commercial banks, which have been put into the debt repayment plans, but, due to objective reasons, have not yet enjoyed the debt freezing, shall be entitled to the remission of lending interest debts and the freezing of principal debts as provided for by law.

2. For the State enterprises subject to transformation as already decided, but meeting with difficulties in balancing sources for repayment of overdue debts, the general directors of the concerned State-run commercial banks shall consider and decide to let the enterprises have their overdue debts owed by the time of issuing the transformation decisions rescheduled or frozen for between 3 and 5 years. Where these enterprises have suffered from losses, being unable to repay their debts, they shall be entitled to the remission of lending interest debts, including the interest amounts already principalized at the level not exceeding the remaining loss amount.

The enterprises, which are carrying out procedures for equitization, assignment or sale, in addition to the above-mentioned measures of debt freezing or debt remission, shall coordinate with the creditor banks and organizations with function to buy and sell debts in handling the remaining overdue debt principal amounts along the direction of rebuying or reselling debts or converting debts into the banks� contributed capital in the equitized enterprises according to law provisions on contributed capital percentages.

3. The amounts of interest on bank loans, which cannot be collected as in cases prescribed at Point b, Clauses 1 and 2 of this Article, the concerned State-run commercial banks may account them into their expenses. The deficit amounts resulting from the sale of outstanding debts shall be handled according to law provisions on handling of outstanding debts for commercial banks.

Article 13.- Handling of debts to be paid by enterprises to the National Reserve

1. For the debt amounts due to advance of money for purchase of paddy, processing of rice for export, borrowing in paddy from the National Reserve in the 1988-1990 years, and the enterprises have repaid the full advance amounts, the full amounts of money at the paddy-buying prices at the time of borrowing, but, due to the quantitative conversion at the repaying prices, still owe debts, they shall be entitled to remission of such debts.

2. The paddy prices applicable to the repayment of debts to the National Reserve, which have been declared and certified, shall be the paddy prices used for calculation of agricultural tax at the time of borrowing.

Article 14.- Handling of social insurance debts

1. For enterprises subject to transformation, before being transformed, they shall have to definitely pay the social insurance debts.

2. For enterprises subject to sale while they do not inherit debts, they shall be given priority to use the proceeds from the sale of enterprises for repayment of their debts to the social insurance agencies. In case of deficit, they shall be considered and provided with payment support from the fund for reorganization and equitization of State enterprises.

Article 15.- Handling of debts owed to organizations, individuals

The enterprises, which are subject to transformation as already decided, shall, before being transformed, have to definitely repay all debts to their creditors being organizations and/or individuals inside and outside the enterprises. Where the enterprises meet with difficulties or have demands to mobilize more capital, restructure their debts and obtain the approval from their creditors, such debt amounts may be converted into equities in the transformed enterprises but in compliance with the law provisions on the minimum number of shareholders and the right to buy the first-time equities in the equitized enterprises.

Article 16.- Other payable debt amounts of operating enterprises

1. The enterprises which import goods under the directives of competent State bodies and distribute them according to State plans but cannot collect money to repay their debts shall have to report such to the Finance Ministry for sum-up and further report to the Prime Minister for handling decisions so that the enterprises shall have sources for repayment of their debts.

2. The enterprises which import goods under the directives of competent State bodies but the goods have been left in stock and unsaleable shall be entitled to liquidate them and to reduce their capital. The liquidation shall comply with the provisions of law.

3. For the enterprises which borrow foreign capital to import goods under the directives of competent State bodies or under the assigned State plans, if there appears the difference between the exchange rates at the time of borrowing for goods import and the exchange rates at the time of repaying debts, thus making the enterprises unable to repay their debts, the Finance Ministry shall examine the cases and consider the budget allocation equal to the exchange rate difference amount for the enterprises to repay their debts.

4. For the enterprises which borrow foreign capital with the guarantee of competent State bodies or other organizations but conduct their business at a loss, thus being unable to repay their debts, the guaranteeing agencies or organizations shall take initiative in negotiating with foreign creditors for the reduction of the payable debt amounts to the lowest level and arrange sources from the budget of the same level for repayment of foreign debts. The enterprises whose foreign debts have been repaid by the budgets shall have to refund such amounts to the budgets. If meeting with difficulties, the agencies or organizations, which have provided guarantee for the enterprises to borrow capital, shall report them to the Finance Ministry for submission to the Prime Minister for decision.

Article 17.- Handling of enterprises having large bad debts

The State enterprises, which have reorganized their production and had large amounts of payable debts but cannot repay them, must be dissolved or bankrupted according to the provisions of law. Where it is necessary to maintain the enterprises and the enterprises have efficient business plans already approved by competent bodies, the provincial/municipal People�s Committees, their managing ministries or branches and corporations shall propose handling measures to the Finance Ministry which shall consider the partial support from the sources of expense for reform of State enterprises and create financial conditions for the enterprises to resume their normal operation. Cases falling beyond its competence shall be reported to the Prime Minister for decision.

Chapter IV

COMPETENCE AND RESPONSIBILITY TO MANAGE AND HANDLE DEBTS

Article 18.- Competence to handle debts

1. The Finance Minister:

a) To decide the remission of tax debts and State budget remittance amounts or the conversion of outstanding State budget debts into budget capital allocations as investment support for State enterprises.

b) To decide the handling of debt purchase and sale differences for organizations which have the function of buying and selling outstanding debts and assets regarding the receivable outstanding debts of transformed enterprises, transferred to these organizations for handling under decisions of competent bodies with sources of expense for reform of enterprises.

c) To decide the decrease of capital for independent cost-accounting enterprises under State corporations or ministries, ministerial-level agencies, agencies attached to the Government.

d) To decide on the provision of capital support or the reduction of losses of enterprises with the sources of expense for reform of State enterprises by decisions of the Government.

e) To decide the handling of tax debts for export goods and/or import goods according to the provisions in Article 11 of this Decree.

f) To assume the prime responsibility together with Vietnam State Bank and relevant agencies in guiding and organizing the implementation of debt handling for State enterprises and financial handling for State- run commercial banks when effecting the debt reschedule, debt freezing or debt remission for enterprises according to the provisions of this Decree.

2. The General Director of Customs shall coordinate with the Finance Ministry in considering the handling of tax debts for export goods and import goods according to the provisions of this Decree.

3. The Vietnam State Bank Governor shall assume the prime responsibility and coordinate with the Finance Ministry in guiding and deciding the implementation of debt reschedule, debt freezing, debt remission and the conversion of capital borrowed from banks into equity capital at the transformed enterprises.

4. The ministers, the heads of the ministerial-level agencies or the agencies attached to the Government and the managing boards of the State corporations shall coordinate with the Finance Ministry in handling debts for their attached independent cost-accounting enterprises.

5. The presidents of the provincial/municipal People�s Committees shall consider and decide on capital decrease and debt handling for independent cost-accounting enterprises under the provinces or centrally-run cities.

Article 19.- Responsibility to manage and handle debts

1. Enterprises shall have the responsibility to draw up the Regulations on management of the units� debts, open debt-monitoring books according to the current regimes, assign officials to manage the debts, regularly make comparisons, urge and actively seek every measure to recover debts, timely repay due debts without letting the debt arrearage to reoccur.

2. Where the overdue receivable debts cannot be recovered, the enterprises shall have to analyze the subjective and objective causes thereof, determine the responsibilities of individuals and collectives for material compensations. If they are not handled yet due to contractual disputes, the enterprises� representatives at law shall have to seek measures for definite settlement thereof. The enterprises shall have to make deductions for setting up debt reserves for receivable bad debts and handle receivable debts which cannot be recovered under the provisions of this Decree.

3. Debt amounts which have arisen after December 31, 2000 must be settled definitely by enterprises when the debts turn due without letting them to be outstanding. The enterprises� representatives at law shall have to bear responsibility for the arising of outstanding debts. Particularly for receivable bad debts, the enterprises shall have to actively handle them according to the provisions of law, without leaving them unsettled for more than 3 years.

4. The managing boards or directors (for enterprises without the managing boards) shall handle overdue receivable debts, which cannot be recovered, according to the above provisions and bear responsibility before law for their handling. For transformed enterprises, the handling of the reduction of their values, the reduction of the value of the State capital portions at enterprises must be reported by the enterprise directors to the State bodies competent to decide the values of enterprises for decision according to regulations.

Chapter V

IMPLEMENTATION PROVISIONS

Article 20.- Setting up organizations to perform the function of buying and selling outstanding debts and assets

1. To set up the outstanding debt and asset-buying and selling organizations in order to support the settlement of debts and assets when reorganizing and restructuring the State enterprises, to accelerate the process of transformation of State enterprises.

2. The outstanding debt and asset- buying and selling organizations shall be provided by the State with adequate charter capital from the sources of expense for reform of State enterprises for operation and shall be provided by the State with support for the differences between the values of the receivable debt amounts and the actually collected amounts of the receivable outstanding debts, which can not be recovered and are transferred from the transformed enterprises under decisions of competent State bodies from the sources of expense for reform of enterprises.

Article 21.- Implementation effect

This Decree takes effect 15 days after its signing for promulgation. The previous decisions on debt settlement, which are not contrary to this Decree, remain to be effective for implementation.

Article 22.- Implementation guidance

The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the provincial/municipal People�s Committees, the managing boards of corporations, the general directors or directors of the State enterprises, the Central Steering Board for General Settlement of Debts and the debt settlement boards of all levels shall have to guide, direct and organize the implementation of this Decree.

On behalf of the Government

For the Prime Minister

Deputy Prime Minister
NGUYEN TAN DUNG